What does the legislation relating to the protection of children and young people do?

The Children and Young People (Safety) Act 2017 (SA) (the Act) gives authority to the relevant Department (the Department for Child Protection) to intervene when a child or young person is at risk. This intervention can take several forms, ranging from referring families to appropriate support and services to seeking an order to remove a child from their parents’ care. It is a principle of the Act that children or young people who have been removed should be placed in a safe, nurturing, stable and secure environment. It is preferable for placement to be with a person with whom the child or young person has an existing relationship and that approved carers should be involved in decision making relating to children and young people in their care [s 11].

If an Aboriginal or Torres Strait Islander child or young person is taken into care, then it is a principle of the Act that the child or young person be placed in care, in order of priority, with [s 12(3)]:

When is a child or young person defined as being ‘at risk’?

The Act recognises that physical and psychological harm may include three main types of abuse and/or neglect [s 17]:

A child or young person is considered to be at risk if the child or young person [s 18(1)(a)-(c)]:

A child or young person is also considered to be at risk if their parents or guardians are unable or unwilling to care for them, if they are of no fixed address or if they are of compulsory school age but have been persistently absent from school without satisfactory explanation [s 18(1)(d) and (e)]. In making an assessment about whether a child is at risk attention must be had not only to the current circumstances of the child’s care but also to the history of the child’s care and the likely cumulative effect on the child of that history [s 18(3)].

What if a child or young person is at risk of serious harm?

Ultimately the decision about whether a child or young person is at risk and in need of protection under the Act rests with the Department for Child Protection.

Child protection officers have the power to remove a child or young person from their home if they believe it is necessary to protect them from suffering serious harm and there is no reasonably workable alternative [s 41(1), see also Uniform Special Statutory Rules 2022 (SA) r 343.1]. They may also remove a child or young person if a child protection restraining order or an intervention order is in force that requires a respondent not to reside with the child or young person, but the respondent is residing with the child or young person [Children and Young People (Safety) Regulations 2017 (SA) reg 17]. If a child or young person is removed, they go into the custody of the Chief Executive until they are returned to their parents or another person or at the end of the fifth working day following their removal [s 43]. As such, if orders are necessary, the matter must be brought before the Youth Court within those 5 working days [s 43].

A child protection officer may be a police officer or an officer authorised by the Chief Executive of the Department for Child Protection [s 147]. The latter must be issued with an identity card stating that they are a child protection officer and must produce it for inspection upon request. Child protection officers have a range of powers (with or without a warrant) for the purpose of removing children and young people from situations in which they are at risk of harm. Refusing to comply with a direction from a child protection officer is an offence [s 149(10)]. The maximum penalty for this offence is imprisonment for one year. The practice is usually for the Department to contact the police to assist in this process or vice versa.

What if a parent is found guilty of a qualifying offence?

If a parent with whom a child or young person resides is found guilty of committing or attempting to commit a qualifying offence the Chief Executive must issue an instrument of guardianship [s 45].

A qualifying offence includes any of the following offences, where the victim was a child or young person and the offender was the parent of the child or young person [s 44]:

An instrument of guardianship removes children or young people from the parent’s care and places them under the guardianship of the Chief Executive for 60 days or such longer period allowed by the Youth Court [ss 44 and 45(2)]. If an instrument of guardianship is issued, the Department must both investigate the circumstances of the child or young person [s 34(2)] and make an application for orders from the Youth Court [s 50(1)]. The application must be made as soon as possible and, in any case, within the guardianship period [s 50(2)]. The particular orders the Department applies for is in the Department’s discretion. See What orders can the Youth Court make?

What if there are Family Law Court parenting orders in place?

If there are parenting orders in place in favour of the person who is the suspected source of abuse or neglect towards the child, a notification should still be made to the Department for Child Protection.

The parenting orders will, however, remain in place unless and until they are suspended, varied or discharged by either the Family Law Courts or the Youth Court. The powers exercised by the Chief Executive or orders made by the Youth Court under the Act will take precedence over the parenting orders. The Federal Circuit and Family Court of Australia (the Family Law Court) cannot make further parenting orders unless they are expressed to commence when the child ceases to be under the care of the Chief Executive [Family Law Act 1975 (Cth) s 69ZK].

If parenting proceedings have been issued in the Family Law Court prior to a child or young person being under the care of the Chief Executive pursuant to the Act, then a party to the proceedings must inform the Family Law Court of any child or young person in the family who is under the care of the Chief Executive pursuant to the Act [Family Law Act 1975 (Cth) s 60CH].

Only the Department for Child Protection can make an application to the Youth Court.

If a parent finds themselves in a situation where they are required to comply with parenting orders which may put the child or young person at further risk, they should seek legal advice without delay. They may need to make an urgent application to the Family Law Courts to suspend, vary or discharge the orders while the Department for Child Protection investigate the allegations.